Commonwealth v. Tighe

• Decision Date: 19 February 2020
• Docket Number: No. 57 MAP 2018,57 MAP 2018
• Citation: 224 A.3d 1268
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Patrick TIGHE, Appellant
• Court: Pennsylvania Supreme Court

224 A.3d 1268

COMMONWEALTH of Pennsylvania, Appellee

v.Patrick TIGHE, Appellant

No. 57 MAP 2018

Supreme Court of Pennsylvania.

Argued: May 14, 2019

Decided: February 19, 2020

OPINION ANNOUNCING JUDGMENT OF THE COURT

JUSTICE DOUGHERTY

In this discretionary appeal, we examine whether the trial court improperly limited appellant's right to self-representation in violation of the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution when, during appellant's jury trial for sexual offenses committed against a minor female, the court prohibited appellant, who was proceeding pro se , from personally conducting cross-examination of the victim-witness, and instead required stand-by counsel to cross-examine the witness using questions prepared by appellant. We determine there was no constitutional violation and affirm the order of the Superior Court.

On the night of May 29, 2012, appellant, then 58 years old, sexually assaulted a minor female victim, J.E., then 15 years old, by placing his penis in her mouth and vagina. The following day, J.E. told her older sister what had happened. J.E.'s sister called the police who transported J.E. to the Children's Advocacy Center for medical examination and a rape kit. The examination showed redness, abrasions and exfoliations of J.E.'s internal and external genitalia consistent with trauma. Testing of the contents of the rape kit resulted in a forensic and statistical finding that appellant's and J.E.'s DNA were present on a pubic hair combed from J.E.'s vaginal area. Police conducted a consensual phone intercept between J.E. and appellant, in which appellant made incriminating statements. Police arrested appellant and charged him with rape, involuntary deviate sexual intercourse, indecent assault of a person less than 16 years old, unlawful contact with a minor, and statutory sexual assault.¹

Prior to trial, in February 2013, appellant informed the court he wished to proceed pro se .² The court conducted a Faretta colloquy, determined appellant knowingly and voluntarily relinquished his right to counsel, granted the request to proceed pro se and appointed stand-by counsel, attorney Christopher Osborne. See Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (Sixth Amendment right to counsel implicitly includes right to self-representation); Pa.R.Crim.P. 121(A)(2) (setting forth minimum inquiry necessary to determine defendant's choice to proceed pro se is knowing, voluntary and intelligent); Pa.R.Crim.P. 121(D) ("When the defendant's waiver of counsel is accepted, standby counsel may be appointed for the defendant.").³

On May 9, 2013, appellant was released on bail from Lackawanna County Prison. One of appellant's bail conditions directed him to have no contact with the victim. On May 20, 2013, J.E. reported to police that appellant had phoned her multiple times that day. The Commonwealth filed a petition for bail revocation, and on June 4, 2013, the court held a bail revocation hearing, at which appellant appeared pro se and J.E. was scheduled to testify as a witness for the Commonwealth. The Commonwealth sought to restrict appellant's personal cross-examination of J.E. for the purposes of the hearing. The Commonwealth argued, "One of the relevant conditions ... was, in fact, no contact with the victim. ...[W]hen we talk about self-representation, the question of forfeiture always arises." N.T. 6/4/13 at 37-38. The Commonwealth argued appellant's flouting of the specific no-contact condition was "willful disregard" of that condition and thus appellant had forfeited the right to question J.E. personally. Id. at 38. The Commonwealth also offered evidence that J.E. had been upset and frightened by the calls.

At the hearing, appellant asserted, in part, "There's no history of me threatening the ... victim[.]" Id. at 36. The court noted a condition of appellant's bail was "no contact with the victim in any form," and ruled, "[f]or purposes of today's proceedings only and for purposes of the complaining witness only, ...you will not be permitted to conduct your own cross examination." Id. at 34, 39. The court explained to appellant "[y]ou may write down any questions that you want to ask of the complaining witness. And you may have either [stand-by counsel] ask the questions for you or the [c]ourt ask the questions for you." Id. at 39.⁴

J.E. then testified on direct-examination that on May 20, 2013, she noticed numerous unanswered calls to her phone from a number she did not recognize, so she called the number back and asked, "[W]ho's this[?]" Id. at 42. A voice replied, "you know who this is[,]" among other things, and J.E. recognized the voice as appellant's. Id. She testified, "[Appellant] said, 'Come on. Why [are] you doing this to me? I didn't hurt you. Please don't put me in jail for life. We can make it right baby[;]" to which she replied, "Yes you did hurt me[,]" and hung up. Id. Appellant called back several more times and each time J.E. answered and quickly hung up. She also testified she had been frightened, in part because she did not know appellant had been released and she believed he might be looking for her.⁵ Stand-by counsel cross-examined J.E., asking her questions prepared by appellant. At the conclusion of the hearing, the trial court revoked appellant's bail.

On June 17, 2013, the court conducted a pre-trial hearing wherein, among other things, the court addressed appellant's "request ... [for] a ruling on who is going to conduct cross examination" at trial. N.T. 6/17/13 at 12. The Commonwealth took the position appellant's willful misconduct in violating the conditions of bail should "be construed as a forfeiture" of appellant's right to question J.E. personally at trial. Id . at 13. The Commonwealth specifically argued:

[Appellant] willfully violated those rules. They were fairly clear, I think, don't contact the victim. He disregarded them. ...

Now we have from past behavior that whether or not there is an order in place, whether or not there is [a] parameter set up by the court in terms of what is or is not relevant questioning, the manner of questioning, the depth of questioning, the subject matter of questioning, I don't know that anyone can guarantee that [appellant] would follow that because he's demonstrated his willful disregard for a prior order of court.

So [we] would simply supplement with what was submitted some time ago with the fact that overlaying that is the question of whether or not [appellant] now forfeits his right because of his own behavior.

Id. at 14-15.

Appellant countered the Commonwealth's assertion of forfeiture by arguing precedent "clearly state[s] ... a pro se defendant [shall] represent[ ] himself in all phases of the trial." Id. at 15. Appellant continued:

And that phone call that was supposedly made, there was no threats, there was no, like, threats, I'm going to kill you, nothing like this, like I'm going to come and get you if you [ ] testify. There [were] no threats. It was asked, Why are you going to put me in prison for the rest of my life? I never hurt you. ...The rules are the rules, and I feel that to have standby counsel cross-examine the victim like that would be very prejudicial to the jury, definitely send a thing to the jury to show a sign to the jury that, like, how could I be representing myself the whole trial but not there. It's almost like saying I'm guilty[.]

Id. at 15-16.

The court deferred ruling on the issue pending its review of pertinent case law.⁶ A final pre-trial conference was held on July 3, 2013.⁷ At that time, the trial court ruled appellant would not be permitted to cross-examine J.E. personally at trial.⁸ The court stated its "number one" reason for the ruling was appellant's "violation of the bail condition of no contact." N.T. 7/3/13 at 9. The court added its ruling also took into account "the age of the victim" and appellant's "position of trust with the minor child." Id. at 9-10. Appellant strenuously objected, repeatedly arguing he has a "right to confrontation" under "Crawford versus Washington." Id. at 13, 14, 19. Appellant asserted, among many other things, "The prosecution showed no offering of proof that the alleged victim has emotional trauma" or "that I am a threat to this witness." Id. at 14, 19. The Commonwealth replied that it could supplement the record, if the court wished, and presented an offer of proof of evidence from a treating psychologist who would testify to the negative emotional impact appellant's personal cross-examination would have on J.E. Id. at 20-21. The court replied, "[T]hat's your decision. If you want the opportunity to supplement the record with that testimony, I will grant you the opportunity to do that." Id. at 20. Ultimately, the Commonwealth did not supplement the record with additional evidence.

On the first day of trial, the court again conducted a Faretta colloquy and determined appellant's decision to represent himself was knowing, voluntary and intelligent. Thereafter, appellant strenuously objected to the court's prior ruling that standby counsel would conduct cross-examination of J.E. The court replied, "I understand you're making a record, but it has been decided, sir. Your Sixth Amendment right to represent yourself is not absolute." N.T. 7/8/13 at 19. The court stated it had engaged in a balancing test "between your right to represent yourself and protecting any potential witnesses from potential harm." Id. In response to appellant's continued argument against the court's ruling, the court responded:

The grounds for my ruling, sir, hinged largely upon the nature of the bail violation. The fact that there was a [c]ourt order in place at the time you were released on bail and you were reminded of that because it was written on the new bail piece. The piece that was produced at the time that you were actually released; no contact with the victim. Then we had an evidentiary hearing in

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